Runyon v. Hawley

APPEAL
FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
LORAIN, OHIO CASE No. 16CV189102

BARRY
R. MURNER, Attorney at Law, for Appellees.

JONATHAN E. ROSENBAUM, Attorney at Law, for Appellant.

DECISION AND JOURNAL ENTRY

LYNNE
S. CALLAHAN, JUDGE.

{¶1}
Appellant, Jeffrey Runyon, appeals from the judgment of the
Lorain County Common Pleas Court vacating the default
judgment against Appellees, Joel Hawley and Hawley Motors,
L.L.C. For the reasons set forth below, this Court affirms.

I.

{¶2}
Mr. Hawley retained the services of Mr. Runyon to paint and
restore a 1960 Lincoln Mark V convertible and to repair and
paint a 2012 Jeep Wrangler. Due to Mr. Hawley's failure
to pay for the parts and labor, Mr. Runyon placed a
mechanic's lien on the vehicles and stored the vehicles
on his premises for an extended period of time. During this
time, Mr. Hawley transferred the title of the Lincoln from
his name to his business, Hawley Motors, L.L.C. Mr. Hawley is
the statutory agent for Hawley Motors, L.L.C.

{¶3}
Mr. Runyon filed a complaint against Mr. Hawley for breach of
contract and quantum merit to recover the costs of the parts
and labor and the storage costs of the vehicles.
Additionally, the complaint included a demand against Hawley
Motors, L.L.C. for a judgment transferring the title of the
Lincoln to Mr. Runyon.

{¶4}
Service of the summons and complaint was initially attempted
on Mr. Hawley and Hawley Motors, L.L.C. via certified mail at
309 County Road 40, Sullivan, Ohio 44880. This address was
listed on the complaint and the Ohio Secretary of State's
website as the statutory agent's address. The certified
mail of the summons and complaint for Mr. Hawley and Hawley
Motors, L.L.C. were returned as "[unclaimed." Mr.
Runyon then requested service of the summons and complaint
upon Mr. Hawley and Hawley Motors, L.L.C. by ordinary mail at
the same address. The ordinary mail was not returned to the
clerk of court for either Mr. Hawley or Hawley Motors, L.L.C.

{¶5}
Mr. Runyon moved for default judgment against Mr. Hawley and
Hawley Motors, L.L.C, which the trial court granted. Mr.
Runyon filed a certificate of judgment lien and transferred
the title of the Lincoln into his name.

{¶6}
Six months later, Mr. Hawley and Hawley Motors, L.L.C. filed
a Civ.R. 60(B) motion to vacate the default judgment and a
supporting affidavit averring "they were unaware of this
case and [] the judgment entered against them" and Mr.
Runyon committed a fraud upon the court based on the contents
of his affidavit in support of the default judgment. The
motion to vacate was fully briefed, but no hearing was held.

{¶7}
Pursuant to Civ.R. 60(B), the trial court granted the motion
to vacate the default judgment filed by Mr. Hawley and Hawley
Motors, L.L.C. on the basis that they "never received
proper service of the [c]omplaint." Mr. Runyon timely
appeals from this judgment entry, asserting three assignments
of error. To facilitate the analysis, this Court will address
the assignments of error out of order.

II.

ASSIGNMENT
OF ERROR NO. 1

THE
TRIAL COURT ABUSED ITS DISCRETION BY GRANTING THE MOTION TO
VACATE THE DEFAULT JUDGMENT BECAUSE THE DEFENDANTS ALLEGED
THEY DID NOT ACTUALLY RECEIVE THE SUMMONS WHEN SERVICE WAS
PERFECTED PURSUANT TO THE CIVIL RULES.

{¶8}
Mr. Runyon's first assignment of error sets forth various
instances in which the trial court abused its discretion when
it vacated the default judgment because "[Mr. Hawley and
Hawley Motors, L.L.C.] never received proper service of the
[c]omplaint." This Court disagrees with each of Mr.
Runyon's sub-arguments.

Motion
to Vacate: Civ.R. 60(B) v. Common Law

{¶9}
As an initial matter, Mr. Runyon argues that the motion to
vacate should have been treated as a common law motion. Mr.
Hawley and Hawley Motors, L.L.C. filed their motion to vacate
pursuant to Civ.R. 60(B) and the trial court addressed the
issue of improper service of process pursuant to the
requirements of Civ.R. 60(B). Mr. Runyon did not raise this
issue in the trial court and, therefore, has forfeited this
argument. See JPMorgan Chase Bank, Natl. Assn. v.
Burden, 9th Dist. Summit No. 27104, 2014-Ohio-2746,
¶ 12 ("Arguments that were not raised in the trial
court cannot be raised for the first time on appeal.").
Nonetheless, the filing of a Civ.R. 60(B) motion to vacate a
void judgment is not fatal and this Court will consider the
motion as a common law motion to vacate.[1]See In re
Adoption of A.A.C., 5th Dist. Muskingum No. CT2011-0028,
2011-Ohio-5609, ¶ 12; U.S. Bank, N.A. v.
Cooper, 9th Dist. Medina No. 12CA0084-M, 2014-Ohio-61,
¶ 10, rev'd on other grounds, 140 Ohio
St.3d 1519, 2014-Ohio-5251.

{¶10}
Mr. Runyon framed all of his arguments in the first
assignment of error as the trial court having abused its
discretion. Generally, a trial court's decision regarding
a common law motion to vacate is reviewed for an abuse of
discretion. Terwoord v. Harrison,10 Ohio St.2d 170,
171 (1967). However, Mr. Runyon is challenging the trial
court's determination that it did not have personal
jurisdiction over Mr. Hawley and Hawley Motors, L.L.C.
"'Challenges to a trial court's jurisdiction
present questions of law and are reviewed by this Court de
novo.'" First Merit Bank, N.A. v. Wood, 9th
Dist. Lorain No. 09CA009586, 2010-Ohio-1339, ¶ 5,
quoting Eisel v. Austin, 9th Dist. Lorain No.
09CA009653, 2010-Ohio-816, ¶ 8. Accordingly, this Court
will conduct a de novo review of the first assignment of
error.

{¶12}
Civ.R. 4.1(A)(1)(a) provides for service to be made by
certified or express mail. If either of these methods is
attempted and the envelope "is returned with an
endorsement stating that the envelope was unclaimed,"
the party requesting service must be notified by the clerk
and the party may request service by ordinary mail. Civ.R.
4.6(D). Ordinary mail service is "deemed complete when
the fact of mailing is entered of record" and "the
ordinary mail envelope is not returned by the postal
authorities with an endorsement showing failure of
delivery" Id.

{¶13}
Civ.R. 4.2 specifies who may be served. Under that rule, to
serve a limited liability company, a plaintiff may direct
"[s]ervice of process pursuant to Civ.R. 4 through
Civ.R. 4.6" to "the agent authorized by appointment
or by law to receive service of process." Civ.R. 4.2(G).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;{&para;14}
For purposes of service, Mr. Hawley was the statutory agent
for Hawley Motors, L.L.C. See Civ.R. 4.2(G). In this
case, the docket reflects that certified mail service issued
to Mr. Hawley and Hawley Motors, L.L.C. at 309 County Road
40, Sullivan, Ohio 44880 was returned to the clerk unclaimed.
See Civ.R. 4.1(A)(1)(a). At Mr. Runyon&#39;s
request, the clerk issued ordinary mail service to Mr. Hawley
and Hawley Motors, L.L.C. to the same address, which was not
returned to the clerk. See Civ.R. 4.6(D). Based on
the above service ...

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